Many enterprises are forced to cease their activities, and people lose their jobs. There are a number of legal measures provided for during the liquidation of an enterprise aimed at protecting citizens. Let's look at what payments employees are entitled to.
Dismissal procedure during liquidation
According to Article No. 180 of the Labor Code of the Russian Federation it is stated that employees who have been laid off due to the liquidation of an enterprise must be notified of this no later than 60 days before dismissal:
- If the employee was employed for seasonal work, he must be notified 7 days in advance. If an employee of an organization worked under a fixed-term contract, he must be notified 3 days in advance.
- If the worker is currently on vacation or has gone on sick leave, then he must be notified of his impending dismissal upon liquidation of the organization by registered mail.
IMPORTANT! The 2-month period begins to count from the moment the letter is received, and not from the moment it is sent. The boss must take care in advance to inform absent people and obtain their signature.
Notification of layoffs from the enterprise is made in two copies. After reviewing each of them, the worker puts a signature. Afterwards, one copy remains in the hands of the worker, and the other is taken by the employer.
You do not have to sign the notice. A special act is simply created that documents the transmission of the notice to the subordinate and the date on which this occurred. The document is signed by two witnesses. This can be any employee of the organization.
All these measures are aimed at ensuring that people have enough time to find a new job.
Although there is Article No. 261 of the Labor Code of the Russian Federation, according to which it is impossible to fire workers who are pregnant or on maternity leave, as well as single parents and other citizens; if the company is dissolved, all categories are subject to dismissal.
What payments are due to employees?
When a company ceases to operate, the employment agreements with the people working for it are terminated. Payments to employees upon liquidation of an enterprise are made in full on the last working day.
Before the company ceases to operate, management must make the following payments to its subordinates:
- Salary for all days worked during this period.
- Compensation for all unused vacation days for the entire period of work.
- Severance pay.
- Payment for the duration of employment for the first two months.
- Payment for the third month of employment, subject to provision of a certificate from the labor exchange.
- Compensation for early termination employment contract. Equal to average earnings.
ATTENTION! Upon termination of work legal entity no payment is made sick leave. When a worker falls ill before finishing labor relations and recovered when the liquidation of the company was recorded in the Unified State Register of Legal Entities, pays sick leave Social Insurance Fund.
Severance pay
The employer is obliged to pay his former subordinate in full no later than 2 months after the end of their employment relationship and must make payments 3 times: severance pay upon dismissal and compensation for the first and second months.
As it says Article No. 178 of the Labor Code of the Russian Federation, in case of reduction of the organization's personnel or liquidation of the company, to a dismissed employee, which is equal to the employee's average monthly earnings.
While a citizen fired from an enterprise is looking for work in the first month, he is paid compensation equal to the average monthly salary. If a citizen does not find a job within the second month from the date of dismissal, then he is paid another benefit equal to the average monthly salary.
In some cases it can be done cash payment for the third month. This happens by Article of Law No. 178 of the Civil Code of the Russian Federation, if within two weeks after dismissal the former employee stood up and they could not find a job for him for two months. However, if the dismissed person violated the regulations of the labor exchange, then he will be denied an extension of payment of funds.
According to Article No. 279 of the Labor Code of the Russian Federation, the boss is also entitled to benefits upon liquidation of the organization. Its value is equal to three average salaries. Its size may be even larger if this was previously agreed upon and documented.
REFERENCE! The benefit is not paid to an employee working under a fixed-term employment contract for a period of up to two months. For seasonal workers, the amount of compensation is equal to their two weeks' earnings.
It is extremely important to remember that there are cases where workers only received compensation for the first month. The next month the company went into liquidation, and there was no one to turn to for the due payments. In this regard, payment of severance pay equal to three average monthly salaries is allowed. This is possible if such a condition was accepted in the company agreement before the start of the liquidation procedure.
Vacation compensation
According with Article No. 127 of the Labor Code of the Russian Federation In addition to wages for days worked, the worker is also paid. For the calculation, the employee’s average salary for one working day is taken and multiplied by the remaining vacation days not used by the worker.
ATTENTION! Compensation is accrued to all working personnel, even those who have worked for less than six months and have not yet worked enough time for vacation.
Article No. 115 of the Labor Code of the Russian Federation determines that every citizen has the right to 28 days of paid leave. If less than a year has been worked, then the number of vacation days is calculated using the formula 2.33 days for each month worked. In a situation where not a full month has been worked, but more than 15 days, the number of days received is rounded to the nearest whole number.
Only those people who managed to work at least five and a half months in a working year can receive the full amount of severance pay upon liquidation of an organization. Personal income tax is withheld from the amount of compensation paid.
Compensation for early termination of the contract
In accordance with Article No. 180 of the Civil Code of the Russian Federation, each employee must be notified by their superiors of the future liquidation of their company. After receiving the relevant papers, the worker has the right to early termination of the contract.
The worker expresses his consent by signing the necessary application for termination of the employment agreement. The document is submitted to the boss, after which the manager issues an order of dismissal before the start of the abolition of the company.
The resigning worker receives all benefits and payments due to him, as well as compensation for early departure. The amount of compensation to the organization’s employees depends on the number of days remaining before the company’s liquidation, multiplied by the average daily salary. The sooner the contract is terminated, the larger the amount of compensation will be.
There is no specific template for writing an application. There are only mandatory items to fill out:
- Full name and position of the employee writing the application.
- Name and position of the boss.
- Business name.
- Reason for dismissal: in this case dissolution of the company.
- Date and time of writing.
- Date of termination.
- Applicant's signature.
Payment is made to the employee’s hands on his last working day.
What payments are due to pregnant women?
Employees on maternity leave, like other categories of workers, must be notified in advance of dismissal. To do this, you can send an application by mail or hand it in person. Only after the employee signs it will it be possible to terminate the employment contract within the prescribed period.
According to Article No. 6 of Federal Law No. 81, the recipient will continue to receive it. To do this, you need to queue up at the labor exchange. Social security authorities will assign payments at your place of residence. Begins to be paid no later than 10 days from the date of submission of documents.
IMPORTANT! When calculating the amount of severance pay, only earnings received before taking parental leave are taken.
List of documents for receiving benefits:
- Application for payment of maternity benefits.
- Certificate of incapacity for work.
- Extract from employment last place work.
- A paper from the employment service confirming your unemployed status.
Maternity leave must be appointed before the dissolution of the enterprise. If an employee goes on vacation after the start of this procedure, then the payment is no longer made by the company, but Social Insurance Fund.
In conditions of economic crisis, there is a danger of liquidation of the enterprise. A particular risk arises when it belongs to a private person and does not bring the desired profit. When an enterprise is dissolved and a legal entity is liquidated, employees receive payments in case of loss of their job. I have often encountered bewilderment among entrepreneurs regarding the question of what payments are due to employees upon liquidation of an enterprise. Let's try to understand this in detail.
In what cases can a company be dissolved?
There are cases when an enterprise cannot be modernized, and the only way to improve the situation is to dissolve and liquidate the legal entity. The process can be traced especially clearly against the backdrop of a “permanent” economic crisis. Thus, innovation and modernization of both production and the service sector are growing very quickly. Many “retrogrades”, closed to new methods and solutions, will not win this economic race. Every year, organizations that have exhausted themselves from an economic point of view are liquidated.
But this could be a real disaster for the workers of these companies. The unemployment rate in the country is high, find Good work It’s difficult because of competition, and you can easily lose your “home” place.
In order to protect the rights of workers during the liquidation of an enterprise, the state has provided for a payment system. However, first you need to understand legal side question.
Liquidation of a legal entity
An enterprise can be dissolved either voluntarily (by the owner) or by force (by the state). The responsibility for liquidating the company lies with the body that gave direct permission to create a legal entity. The choice of authority depends on the field of activity the work is related to.
Liquidation of an enterprise (legal entity) means complete elimination without the right to transfer ownership and management to other legal entities.
The liquidation process is finally considered completed when the corresponding entry appears in the Unified State Register of Legal Entities. Legally, the liquidation of an enterprise is the last step in ceasing its operation.
Dismissal upon liquidation of an enterprise
Liquidation of an enterprise also provides for the correct procedure for dismissing employees. According to Article 180 of the Labor Code (Labor Code of the Russian Federation), the employer must give notice of dismissal at least two months in advance. This must be done in person, accompanied by a receipt.
The dismissal process during the liquidation of a company involves the following procedures:
- Informing the employment service authorities, as well as directly workers.
- Issuing a series of dismissal orders.
- Registration of information about dismissal in workers’ work books.
- Payment of severance pay.
If the dismissal is caused by the liquidation of the enterprise, the T-8 form is used when registering the termination of the employment contract. The employer's initiative is indicated as the reason, the work book is filled out indicating Article 81 of the Labor Code. An entry in the work book indicating dismissal through liquidation of the enterprise will not affect the further employment of the employee. You can learn about the details of the dismissal by watching the video below.
Severance pay
So, for many, this point is the most important. How much severance payments are due to former employees, and what are the conditions for receiving them?
Standard payment involves payment for days worked and unused vacation. It also guarantees reimbursement of funds that a former employee may lose during the period between dismissal and placement in a new position.
For permanent employees, the benefit amount corresponds to their average monthly salary wages. According to the nuances of the Labor Code of the Russian Federation, other categories of employees receive different sizes payments depending on the terms of employment.
So, an employee employed in seasonal work, receives the amount of two weeks' earnings. If the employment contract is concluded for less than two months (fixed-term employment contract), then this person is not entitled to severance pay.
Payment for the period of employment
Payment of the average monthly salary will continue for two months from the date of dismissal. The employee managed to submit documents to the employment agency in the first two weeks after dismissal, but was not hired? It is possible to pay the amount in the third month.
Seasonal workers and those with a contract fixed-term contract(up to two months) are not able to take advantage of the payment for the period of employment.
In order to receive the amount, you must be at the workplace on the day when the employer makes a request for payment to the employee. If it was not possible to do this due to illness, you must appear immediately the next day (under Article 140 of the Labor Code).
Opportunity to receive compensation for vacation
According to current labor legislation, an employee has the right to take paid leave every year. If he does not exercise this right, he may demand compensation in the event of liquidation of the enterprise.
Upon liquidation, employees have the right to receive payments The amount of compensation for vacation is calculated in the number of working days specified in the employment contract. To receive the right to compensation for paid leave, an employee must work at the enterprise for at least six months before the liquidation of the organization. For one calendar day of vacation, the average salary per day of work is paid.
Severance pay and pay period
The amount depends on average salary employee. The basis is the total amount of payments and the number of days during which the employee worked. Most often, such information is recorded in the production calendar of the enterprise. Weekends are excluded from this list public holidays. So, if a month has 31 days, then it can only have 25 or even fewer working days.
Thanks to the calendar and the actual amounts of payments, the average monthly salary is fixed.
If an employee received a promotion at the end of the operation of the enterprise, the amount of payments will be calculated on average for the year.
Severance pay for employees paying alimony
Severance pay is a compensation payment that does not fall under the category of wages. It also serves as a means of withholding child support.
On what grounds is severance pay considered a source for alimony payments? This condition is spelled out in detail in Article 109 of the Family Code of the Russian Federation.
Almost every enterprise has employees who pay a percentage of their salary to support minor children. The sources of such payments are any income from individual. Types of income (according to Article 82 of the RF IC) are determined by the state.
The list of types of income was compiled in 1996, and is currently used in the 2008 edition. Among these forms of income there is also the amount of wages, which is retained in cases provided for by the Labor Code. That is, payment of compensation is also included here.
The only exceptions are extraordinary payments if they are related to a wedding, death of relatives, business trips or payments for changing work tools. Such payments are not stable and regular. They are most often aimed not at income, but at covering labor costs. For this reason, they cannot serve as a full-fledged source for collecting alimony, unlike compensation payments.
Benefits for pregnant women and women on maternity leave
A pregnant woman can be fired from an enterprise only if it is completely liquidated. The same is true for women who are on leave due to pregnancy, childbirth and caring for a child under three years of age. The employer does not have the right to dismiss such an employee under other conditions.
Women with children under three years of age who were dismissed during the liquidation of an enterprise are provided with separate benefits.
- The time it takes to find a new job is added to the work book.
- Was the woman fired from her job due to the liquidation of the enterprise? She has the right to receive paid state maternity leave for 12 months.
- The state continues to pay compensation to women on maternity leave established amount. It is necessary that even before the liquidation of the enterprise, the employees are in maternity leave and did not receive unemployment benefits.
Child care, pregnancy and childbirth benefits are paid by the body social protection population. Dismissed employees are assigned to him at their place of residence.
Additional nuances
Sometimes employees have the right to count on more large sums compensation. This is stated in the employment or collective agreement of the enterprise. Thus, the legislation fixes only the minimum amount of payments. The collective agreement may stipulate different conditions for payment of compensation. The annexes to the employment contract are also valid. According to the terms of the Labor Code, they have significant legal value (Part 3 of Article 57).
Finally
The liquidation of an enterprise is a rather unpleasant event for employees who have worked there for more than one year. But the labor legislation of the Russian Federation is concerned about ensuring that employees normal conditions to find a new job. The employer is required to notify the employer of dismissal in advance. At the same time, employees are guaranteed to receive compensation payments, the amount of which is specified in the relevant laws.
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Let's consider how dismissal is carried out, what payments are due and when accrued amounts should be transferred.
When liquidating an enterprise, the company must make all payments to the staff. Otherwise, you will have to explain yourself to the controlling structures.
But in order to issue all the due funds, you should know both the types of mandatory payments and the calculation rules.
Basic information
What do you need to know about liquidating an enterprise and making payments to staff?
Necessary Definitions
Liquidation of a company is the termination of its activities after an entry about the closure of the company is made in the Unified State Register of Legal Entities, termination of rights and obligations.
Payments to employees upon liquidation of an enterprise in 2019
The official will pay 300–500 rubles, and the organization will pay a fine of 3–5 thousand. Unions are notified 3 months before closure.
The mandatory participation of a trade union organization is stated in.
Employees must learn about their upcoming dismissal no later than 2 months in advance. must also be in writing, and the employee must sign about its receipt.
A prerequisite is that 2 copies of the notice must be drawn up - one will remain for the employee, the second - for the organization.
The employee has the right not to sign the notice. Then you need to draw up an act stating the date of notification.
Such a document is drawn up arbitrarily in the presence of several witnesses who certify it with their signatures. The witness may be a member of the liquidation commission or another employee of the enterprise.
If the company employs hired personnel, they must learn about the closure of the company 3 days before the procedure. Seasonal employees are notified one week prior to termination.
In the case where an employee decides to quit early (Article 180 of the Labor Code), the company’s management is obliged to do so.
Compensation should not be less than the average salary of the employee. If some employees are in or, they should also be notified of the closure of the enterprise.
For this purpose they send ordered letter. Fired pregnant employees must be employed by the employer. Directors are dismissed according to the same rules as other employees.
But there is one difference - the document should be recorded separately. Compensation transfers may include and.
After the decision to liquidate is made, a liquidation commission is formed. It is she who receives the authority to manage the organization, and she will also have to fire employees.
If an entry is not made in the Unified State Register of Legal Entities, employees can be reinstated in their jobs through the court.
An order that the employment contract with the employee is terminated must be issued 2 months after the notification is provided.
All employees are familiarized with the orders and signed. If a person cannot familiarize himself with the document in view various reasons, the corresponding mark is placed.
The order should be registered, adhering to the rules established by the internal documents of the enterprise. Forms T-8 and T-8a are used.
After this, the employer will fill out work books, referring to the relevant legislation. The book will be issued on the day the employee is fired. Only then are calculations made.
What are the employees of the company entitled to?
Upon liquidation of a legal entity, an employee can count on receiving:
- wages for hours worked;
- the amount of compensation for the fact that the contract was terminated early;
- compensation transfers for unused vacation, including additional (there are no restrictions on the number of vacations established by law);
- the amount of severance pay, the amount of which is not less than 1 average salary per month (for seasonal workers - for 14 days).
If a dismissed employee was unable to find a job within 2 months, he may receive another payment in the amount of 1 salary.
If a person quits before the end of the two-month period, the company pays wages for the time remaining until the date of liquidation.
Funds are transferred in cash or by bank transfer through a bank. If there are unused vacations, the payment will be calculated based on the days that the employee is entitled to rest, but were not taken by the person.
The obligation to pay compensation is specified in . Use this formula:
If a person has worked for a company for at least six months, then all calculations are made according to general rules.
When calculating average earnings, all amounts provided for by the wage system are taken into account, regardless of the source.
In any mode, calculations are made based on accruals of earnings and time worked for the 12 months that preceded the month of dismissal. This can be considered the billing period.
Payments to bank employees upon liquidation are mandatory. If employees do not fulfill their obligations for reasons beyond their control, downtime occurs.
And if the employer cannot provide work during this period, he issues an order stating that the person is idle due to the fault of the bank, and guarantees the preservation of wages in the amount of 2/3 of the salary.
Cases of license revocation may cause downtime. The due amounts must be transferred every month on the day on which the salary is paid.
Liquidation of an enterprise is a procedure in which it is mandatory to carry out correct calculations with employees.
Otherwise their rights will be violated.And for this you will have to answer to the tax authorities.
Therefore, it is worth studying what amounts and when should be paid to the company’s employees. This helpful information not only for the management of the organization, but also for the employee himself.
Attention!
- Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
- All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.
Liquidation of an organization is a procedure entailing the termination of the rights and obligations of a legal entity without any succession. The general procedure for liquidation is enshrined in the Civil Code of the Russian Federation (Civil Code of the Russian Federation) and is specified in a number of special laws dedicated to individual organizational and legal forms.
To a greater extent, these rules are addressed to creditors of a legal entity interested in the fulfillment of current obligations by the liquidated debtor. As for the rights and guarantees of employees of a liquidated organization, they are provided for by current labor legislation.
Ordered to be liquidated
The employee learns about the liquidation of the enterprise from the employer, who warns about the upcoming dismissal. Each employee is notified personally against signature, general rule, no less than 2 months before dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation). An employee engaged in seasonal work is notified at least 7 calendar days in advance (Article 296 of the Labor Code of the Russian Federation). An employee who has concluded an employment contract for a period of up to 2 months - no less than 3 calendar days (Part 2 of Article 292 of the Labor Code of the Russian Federation).
The notice must be drawn up in two copies - one each for the employee and the employer. According to Art. 14 of the Labor Code of the Russian Federation, the two-month period begins the next day after the employee signs the notice of dismissal.
In addition, when a decision is made to liquidate the organization no later than 2 months, and individual entrepreneur no later than 2 weeks before the start of the relevant activities, they are required to notify the employment service authorities in writing. In this case, it is necessary to indicate the position, profession, specialty and qualification requirements, conditions of remuneration for each specific employee (clause 2 of article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032–1 “On employment of the population in Russian Federation»).
It should be noted that this rule is a very important guarantee of workers' rights. Indeed, in case of non-compliance established order notice, the dismissal order may be declared illegal by the court, and the employer will be obliged to reinstate the employee to the position held before the dismissal. See in this regard:
- decision of the Ussuri District Court of the Primorsky Territory, composed of presiding judge S. P. Moiseev, on the claim of O. N. Bataeva against the Federal State Institution “Pokrovskaya KECh District” of the Ministry of Defense of the Russian Federation;
- decision of the Ivanovo District Court of the Ivanovo Region in case No. 2–1161/10 on the claim of G. N. Karpova against the Kolyanovsky Cultural and Leisure Center MUK, the Regional Centralized Library System MU.
Stop it!
With the written consent of the employee, however, termination of the employment contract can occur before the expiration of 2 months. But in this case, the employee must be paid additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the end of the notice period for dismissal (Part 3 of Article 180 of the Labor Code of the Russian Federation).
As soon as the established two-month period expires, the employer has the right to issue an order to dismiss the employee (unified form No. T-8a “Order “instruction” on the termination (termination) of an employment contract with employees (dismissal)", approved by Resolution of the State Statistics Committee of Russia No. 1 of January 5. 2004).
In accordance with Art. 84.1 of the Labor Code of the Russian Federation, the employee must be familiarized with the order to terminate the employment contract against signature. At the request of the employee, the employer is also obliged to issue a certified copy of the said order.
An entry in the work book about the termination of the employment contract is made after the employee familiarizes himself with the relevant order. The work certificate is issued on the day of termination of the contract.
In addition, upon a written application from an employee, the employer is also obliged to provide him with duly certified copies of documents related to work (Article 84.1 of the Labor Code of the Russian Federation). Such documents may be:
- The order of acceptance to work;
- dismissal order;
- salary certificate in form 2‑NDFL;
- certificate of accrued and actually paid insurance premiums for compulsory pension insurance for the period up to the day of dismissal;
- payslips for the calculation and payment of wages for the period of work until the day of dismissal (decision of the Kuibyshevsky District Court of Irkutsk, Irkutsk Region No. 2–1833/2011 dated October 4, 2011).
Fire everyone
It should be noted that termination of an employment contract in connection with the liquidation of an organization refers to cases of termination of the contract at the initiative of the employer (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, the termination of the enterprise’s activities and the lack of succession means that all full-time employees are subject to dismissal, including those categories for which additional guarantees are established. Thus, the following will be fired:
- employees during a period of temporary incapacity for work, while on vacation;
- pregnant women;
- women with children under 3 years of age;
- single mothers raising a child under 14 years of age (disabled child under 18 years of age);
- other persons raising these children without a mother;
- workers under the age of 18 (clause 23 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).
Since all employees of the liquidated organization will be dismissed, the question of the types and volume of compensation due to them becomes especially relevant.
According to Art. 140 of the Labor Code of the Russian Federation, settlements with all employees in the event of liquidation of the enterprise must be made on the day of dismissal. If the employee was not present on the specified day, then the corresponding amounts must be paid no later than the next day after the request for payment is submitted.
So, based on an analysis of the norms of the current labor legislation, we can conclude that upon liquidation of an organization, an employee has the right to demand the following payments:
- wages for the period actually worked by the employee and not paid by the employer - that is, until the dismissal order is issued;
- compensation for unused vacation;
- severance pay.
The procedure and terms for payment of wages are established by the employer, taking into account the general rules of Art. 136 Labor Code of the Russian Federation. If, at the time of issuing the dismissal order, the employer has arrears in paying wages for past periods, then it must be repaid on the day of termination of the employment contract. In addition, the employee must keep in mind that he has the right to also demand payment of wages for the days actually worked in the month of dismissal.
Unused vacation
In ch. 19 of the Labor Code of the Russian Federation provides for two categories of leave: annual basic paid leave, as well as additional leave. The latter is provided, for example, to employees with irregular working hours, employees with a special nature of work, as well as in other cases directly established by labor legislation.
...an employee who has entered into an employment contract for a period of up to 2 months does not have the right to receive severance pay...
Both categories are taken into account to determine the amount of compensation for unused vacation upon dismissal in connection with the liquidation of the organization (clause 1 of Article 127 of the Labor Code of the Russian Federation). It must be remembered that all employees, regardless of the actual duration of their positions in the liquidated company, have the right to receive full compensation for unused vacation. That is, even if an employee has worked for less than 6 months, he will receive compensation for the vacation due to him in the general manner.
According to Art. 120 of the Labor Code of the Russian Federation, the duration of the annual main and additional paid vacations is calculated in calendar days. Therefore, compensation is calculated based on the number of unused calendar days. It must be remembered that annual paid leave (lasting 28 calendar days - Article 115 of the Labor Code of the Russian Federation) is granted once during the employee’s year of work, counting from the date of entry to work. That is, once per working year, which begins from the first day of work under the employment contract.
In a situation where the working year has not been fully worked, vacation days for which compensation must be paid are calculated in proportion to the months worked.
Compensation for unused vacation is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation, based on the calculation of 2.33 days of vacation per month. This number is multiplied by the number of months worked by the employee.
If the employee did not work completely for the last month, the following assumptions are used for the calculation. Less than 15 days are not taken into account, and 15 days or more are rounded up to the whole month (letter Federal service on labor and employment dated June 23, 2006 No. 944–6).
Example
The employment contract with the employee was concluded on April 15, 2009. From April 15, 2009 to August 17, 2012, the total duration of actually used annual paid leave was 53 calendar days. Starting from April 15, 2009, the employee had the right to the following number of days of annual paid leave:
04/15/2009 – 04/15/2010 (1st working year): 28 calendar days;
04/15/2010 – 04/15/2011 (2nd working year): 28 calendar days;
04/15/2011 – 04/15/2012 (3rd working year): 28 calendar days;
04/15/2012 – 08/17/2012 (4th working year): 2.33 calendar days x 5 months = 11.65 calendar days.
Total for the period labor activity in this organization, the employee had the right to 95.65 calendar days of annual paid leave. Since 53 of them were used, 42.65 calendar days will be taken into account for calculating compensation, and according to established rules rounding paid must be 43 calendar days.
Rounding always occurs upward, in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334–17).
The total amount of compensation will be determined by the employer: the average daily earnings are multiplied by the number of calendar days of unused vacation. As a general rule, the average daily earnings for payment of vacations granted in calendar days and payment of compensation for unused vacations are calculated by dividing the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.4) (clause 10 Decree of the Government of the Russian Federation No. 922 of December 24, 2007 “On the specifics of the procedure for calculating average wages”).
On the issue of compensation
In addition to these guarantees, the employee also has the right to receive severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation).
An employee employed in seasonal work receives severance pay in the amount of two weeks' average earnings (Part 3 of Article 296 of the Labor Code of the Russian Federation). According to Part 3 of Art. 292 of the Labor Code of the Russian Federation, an employee who has entered into an employment contract for a period of up to 2 months does not have the right to receive severance pay.
In order to calculate the amount of severance pay to be paid in cases established by labor legislation, the amount of average earnings is calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remunerations, by the number of days actually worked during this period (clause 9 Decree of the Government of the Russian Federation No. 922 of December 24, 2007 “On the peculiarities of the procedure for calculating average wages”). To calculate severance pay, the specified amount of average earnings is multiplied by the number of working days in the first month after dismissal.
Article 178 of the Labor Code of the Russian Federation also provides for a guarantee for the employee in the form of payment of average monthly earnings during the period of employment, but in any case no more than 2 months from the date of dismissal.
It must be borne in mind that the amount of severance pay is counted towards payments of average monthly earnings. If the employee is employed before the expiration of 2 months from the date of dismissal, average earnings he is paid only for the period before the conclusion of a new employment contract.
Let us note that in exceptional cases, the average monthly salary is retained by the dismissed person for 3 months from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal this employee applied to the employment agency and was not employed by it (Part 2 Article 178 of the Labor Code of the Russian Federation). The amount of average earnings in this case is calculated in accordance with Art. 139 Labor Code of the Russian Federation.
...an employee can be dismissed only after 2 months from the date of warning him about this in writing...
Not all categories of workers have the right to maintain average earnings for the period of employment. Thus, average earnings are not subject to payment to: part-time workers (Article 287 of the Labor Code of the Russian Federation), seasonal workers (Article 296 of the Labor Code of the Russian Federation), employees who have entered into employment contracts for a period of up to 2 months (Article 292 of the Labor Code of the Russian Federation).
When making demands for payment of average monthly earnings during the period of employment, it should be taken into account that the contract may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
Where are the guarantees?
Summarizing the consideration of the issue of guarantees for employees during the liquidation of an organization, it is necessary to note the following main points.
Firstly, Current labor legislation does not provide any special guarantees against dismissal for certain categories of employees when the employer makes a decision to liquidate. In any case, employment contracts will be terminated with all employees.
Secondly, the employee should know that he can be fired only after 2 months from the date of warning him about this in writing. If he expresses a desire to terminate the employment relationship before the expiration of this period, he has the right to demand payment of additional compensation, calculated according to the rules specified in Part 3 of Art. 180 Labor Code of the Russian Federation.
Third, on the day of dismissal, the employer must issue the employee a work book and also make payments to him. As a general rule, an employee has the right to demand payment of wages for the period actually worked and unpaid, compensation for unused vacations, and severance pay. In addition, during the period of searching for a new job, for a period of not more than 2 months, the employee retains his average monthly earnings (including severance pay).
Sofya Danilova, expert of the magazine "Consultant"
Often in our difficult times, enterprises think about liquidation. In this regard, many questions arise. One of these is related to the payment of benefits to dismissed employees. There are many nuances to consider here.
General rules
When a decision has been made to close the company, a liquidation commission is appointed, which will carry out this procedure. As for the workers, it is clear that everyone is being fired. But at the same time, if the liquidation ultimately does not take place, then each of them can be restored on the same conditions as before, by a court decision. It turns out that dismissal on this basis is legal only in the event of actual liquidation.
It should not be confused with a change of ownership or a reorganization. Since no successors will arise, absolutely all employees, including pregnant women and persons under eighteen years of age, are dismissed. Therefore, no additional approvals are required from the authorities protecting the rights of these workers.
When payments are made to employees and all other steps are carried out in strict sequence. Then it will be possible to avoid conflicts with employees and unnecessary material costs.
Notifications
If an organization has decided to close a company, certain actions must be taken within two months. First of all, the following are notified:
- employment authority;
- trade union;
- workers.
The organization is obliged to notify the employment service about the upcoming procedure two months before closing an LLC or an enterprise of any other form of ownership. The document must indicate the professions, specialties and requirements for dismissed employees, as well as the remuneration of each of them.
If there is a mass layoff, three months' notice must be provided.
Responsibility for what Required documents they were not represented during the liquidation of the enterprise; it is administrative. The employer may be prosecuted under the Code of Administrative Offenses for late provision of information.
In matters of termination of an employment contract, where the initiator is the employer, the trade union is required to be involved. This authority is notified in writing. In case of mass dismissal, this must be done three months before the start of the liquidation procedure.
As a general rule, employees are warned about the upcoming dismissal no later than two months before the termination of the contract. However, for those employed in seasonal work, notification is provided no later than seven days, and for those who have a contract of less than 2 months - 3 days in advance.
But if the organization is declared bankrupt, then the bankruptcy trustee informs about the upcoming dismissals no later than one month from the commencement of liquidation proceedings in the specified form. In this case, the employer has the right to terminate the contract earlier if he is ready to pay additional compensation to the employee in the amount of the average salary.
There are no special forms for notification. Therefore, the document can be drawn up in any form. If, after reading the notice, the employee refuses to sign it, a special act of refusal to sign is drawn up, where the authorized body and two or more witnesses (from the liquidation commission or any employees of the company) put their signatures. The two-month period is counted from the day the relevant act was drawn up.
Moreover, if the employee is currently on a business trip, he must be recalled to serve a notice against signature. Only in this case can the two-month period be counted and the employment contract terminated.
Order of dismissal
Orders to terminate the contract are issued in form T-8 or T-8a. They are signed 2 months after the employee has been notified, or ahead of schedule if the employee agrees (there must be written confirmation) and the employer is willing to pay the additional compensation payment.
Each employee is familiarized with the order. Then the corresponding entries are made in the work books. On the day of dismissal, the former employee is given all the compensation due to him.
Employee benefits
Upon termination of the contract on the grounds of liquidation, the employee receives the following payments:
- Salary for time already worked.
- Compensation payment for unused vacation.
- Compensation for early termination of employment relations in this case.
- Severance pay upon liquidation of an enterprise, and it is also received by those employees who worked part-time.
- Average earnings for the 3rd month are paid when a certificate from the employment agency is submitted.
- If an agreement lasting up to two months was concluded, then severance pay is not due. When a seasonal worker is dismissed, the benefit should be equal to 2 weeks' earnings.
Payments to pensioners
When an employment contract is terminated, the reason for which is the liquidation of the enterprise, the employer makes payments to employees in the amount of the average salary for the 3rd month from the date of dismissal to the citizen who is unemployed at that time and has submitted the relevant documents confirming this. However, pensioners do not fall under this category, since they are already protected by the state by receiving a pension. Therefore, the employment service should not issue them a decision to maintain the salary for the 3rd month. At the same time, this body does not have sufficient grounds to refuse such a decision. It turns out that if the employment service nevertheless issues the corresponding document, then the organization is obliged to pay wages for the third month.
Compensation for unused labor
When a company is liquidated, employee benefits also apply to vacation entitlements. To calculate the amount of this compensation, it is taken per year and multiplied by all days of unused vacation.
According to the Labor Code of the Russian Federation, when working for a whole year, an employee is accrued 28 days of vacation. If the year is not fully worked out, then compensation is calculated according to the available months. However, the organization has the right to round off days of payment for unused vacation, but only in favor of the employee.
This type of compensation is not subject to tax and insurance calculations. When compensating, however, income tax and personal income tax may be taken into account.
and average earnings
The decision to liquidate the enterprise also entails the need to pay for the first month after leaving work. The entire amount is payable regardless of whether the employees get a new job or not.
Payment of the average salary can be maintained for a period of no more than 2 months. Moreover, for the second month payment will be made subject to a written application from the employee and work book, where it is clear that reception is on new job No. When starting a new job in the second month, benefits will be paid only for those days when he was not employed.
Payment for the third month is made on the basis of a document issued by the employment center. A dismissed employee can apply for payment at any time. However, after an LLC or an enterprise of another form of ownership has been closed and the organization is excluded from the Unified State Register of Legal Entities, compensation cannot be paid.
The average salary is calculated based on the average actual payment for Last year work. Calendar month- this is the time period from the 1st to the 30th or 31st. If the contract is terminated on the last day of the month, then it is also included in the period for which the calculation is made.
Despite the fact that there is, when liquidation of an enterprise is carried out, step-by-step instruction with sequential actions, some of them can be changed. Thus, as a general rule, an employment contract is terminated after 2 months from the date of notification to the employee. However, its termination may take place earlier than this period if the employee has given his written consent to this. Then the organization pays additional compensation, also determined from average earnings and days remaining before the end of 2 months.
For example, if an employee is fired on the same day as notified, he is paid compensation equal to the average salary for two months. If the contract is terminated later, but earlier than the 2-month period, then payment is made for those days that remain before the date planned for dismissal.
Taxation of compensation payments
When a small, medium or large enterprise is liquidated and the employer pays compensation to dismissed employees, he can take these amounts into account when calculating income taxes. In addition, since the above payments are compensatory in nature, they are not taxed:
- personal income tax;
- social tax;
- insurance premiums.
Payment of amounts at a later date
In cases where an employer violates the terms of payments to employees, financial liability is provided. He is obliged to pay amounts with accrued interest, the amount of which is from 1/300 of the Central Bank refinancing rate for each overdue day. This amount also not taken into account for taxation and insurance premiums.
Temporary disability benefit
This type of benefit is paid at the place of work. But there are exceptions to this. For example, insured persons receive benefits if the injury or illness occurred in the last month from the date of termination of the employment contract, regardless of the reasons for this.
If the employer has already ceased operations by this time, then the payment is made by the Social Insurance Fund. To receive the amounts due you must submit:
- certificate of incapacity for work;
- income certificate;
- documents on experience;
- handwritten statement.
Then the FSS body will assign the appropriate benefit within ten days. A person can receive the payment in person, by mail, or by transfer to a bank account.
Payment of maternity benefits
When an enterprise is liquidated, payments to employees must be transferred to everyone, including women on pregnancy or child care leave. The benefit due to such an employee must be paid within a year. In order for a dismissed woman to receive the payments she needs, she must register with the employment service. The benefit will be transferred by the social protection authorities at the place of her residence.
To receive the following documents must be submitted:
- statement;
- certificate of incapacity for work;
- extract from employment;
- relevant certificate from the employment service.
Thus regulates the procedure Labor Code. Liquidation of an enterprise, no matter what form it takes, is a long and difficult process. It is very important to observe necessary order and sequence of actions, including in order to avoid conflicts with dismissed employees. Otherwise, the enterprise may wait trials which will require additional costs and time.
